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Vernellia R. Randall
Professor of Law
The University of Dayton





Shaunda A.K. Liu

excerpted Wrom: YXOEAIJJPHSCRTNHGSWZIDRE Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders, 25 University of Hawaii Law Review 85-130, 85-89 (Winter, 2002) (326 Footnotes Omitted)

Mohala i ka wai ka maka o ka pua. This Hawaiian saying translated into English literally means "unfolded by the water are the faces of the flowers." The saying is better understood as, "flowers thrive where there is water, as thriving people are found where living conditions are good."

Like flowers, people need water to flourish. Water is essential to the survival of any type of life. But for Hawaiians, both of the past and present, survival is dependent on both land and water. The two are inseparable in providing for good living conditions. The centrality of the 'aina and wai to Hawaiians is reflected in the language, stories, and in the ability to thrive in Hawai'i today.

The 'aina and wai sustained the people of ancient Hawai'i. In ancient times, the land and its resources were under the control of the king, who in turn parceled out areas to his chiefs and supporters down to the common people. Everyone who had a parcel of land had access to most of the vegetation and could gather food from the land and the water. Hawai'i's traditional land system was eliminated in 1848, by the Mahele, which converted Hawai'i's land to governance by a private property system. The Western property system quickly took hold in Hawai'i, and coupled with various factors, eventually forced many Hawaiians off their ancestral lands.

Homesteading came about as a response to the post-Mahele "decimation of the Hawaiian population and the social conditions under which they lived." In 1921, the United States Congress adopted the Hawaiian Homes Commission Act ("HHCA"), providing government land to be leased to native Hawaiians on a long-term (ninety-nine year) basis at a nominal fee. The Act, backed by Prince Jonah Kuhio Kalaniana'ole, Hawai'i's delegate in the U.S. Congress, intended to provide native Hawaiians with an opportunity to reconnect with the land as homesteaders.

The HHCA recognized various rights, including rights to both land and water use. Converting the written word of the HHCA into reality has proven difficult, however, leaving Native Hawaiian rights unenforced. One right that has not been fully enforced is the right to a reservation of water. Hawaiian home land beneficiaries have a right to a water reservation for current and foreseeable uses. The failure to ensure a water reservation violates both the HHCA and the Hawai'i State Constitution. Furthermore, failing to ensure a water reservation breaches the State's fiduciary duty to Native Hawaiians.

The Commission on Water Resource Management ("Water Commission"), recognizes and enforces all water reservations, including reservations for homesteaders. The creation of the Water Commission was a response to concerns over the adequacy of the State's water supply. To that end, the State Legislature established the Water Commission as the State's water resource agency, with the responsibility of protecting and managing water resources. The Water Code, adopted in 1987, declares that its policy is to make adequate provisions for "the protection of traditional and customary Hawaiian rights." The Water Code, in conjunction with the HHCA and State Constitution, provide native Hawaiian homesteaders with water rights, including the right to a water reservation.

This paper argues that Hawaiian Home Land beneficiaries have a constitutional right to a water reservation for current and foreseeable needs and that a failure to ensure a reservation breaches the State of Hawai'i's fiduciary duty to native Hawaiian homesteaders. Part II of this paper provides a historical background of the HHCA, the Hawai'i Water Code, and the Water Commission. Part III discusses and compares Native American and Native Hawaiian water reservation rights. Part III also analyzes the issues surrounding quantifying reserved water. Part IV argues that the ambiguity in the Water Code leads to a failure to secure a constitutionally protected water reservation right. Finally, Part V concludes that this failure to enforce a reservation right breaches the State of Hawai'i's fiduciary duty to native Hawaiian homesteaders.

[327]. J.D. Candidate 2003, William S. Richardson School of Law, University of Hawai'i at Manoa.

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